Five of the plaintiffs in the 1984 dioxin lawsuit against Monsanto Co. in Nitro stand outside the courtroom. Left to right: John Hein, James Ray Boggess, June Martin, Gene Thomas and Charles Farley. Each man sued Monsanto for $4 million each, alleging that exposure to chemicals at the Nitro plant threatened their lives. After an 11-month trial, jurors awarded $200,000 to Hein, but ruled against the other workers. Gazette file photo.
Over the last few weeks, the Gazette’s Kate White and I have been covering the run-up to the big class-action lawsuit trial against Monsanto Co. over alleged contamination of the town of Nitro by the company’s former chemical-making operations there.
Jury selection began last week, after another mediation effort failed. Once a jury is picked and trial begins, jurors will be asked to award thousands of current and former residents medical monitoring to allow early detection of diseases potentially linked to dioxin exposure. Several years ago, we published a lengthy Sunday story that explains in much more detail the allegations in the lawsuit (subscription required) about how Monsanto polluted the town.
As the photo above and Sunday’s story explained, this is certainly not the first major legal action to focus on Monsanto and dioxin:
An early sign of dioxin’s effects came in March 1949. A massive explosion rocked the Nitro plant when a pressure valve blew on a 2,4,5-T cooking container. More than 220 workers got sick.
Years later, more than 170 workers sued Monsanto, alleging dioxin exposure at the plant had made them ill. Cases involving seven of the workers went to trial in federal court in 1984.
After an 11-month trial, a jury awarded one of the workers, John Hein, $200,000 for bladder cancer he contracted because of exposure at the plant to another chemical, para-aminobiphynol, or PAB.
Jurors found that dioxin had made the other workers sick and that Monsanto had not acted diligently in seeking to determine the possible impact of exposure on worker health.
A view of the Monsanto plant in Nitro, 1980.
More importantly, the story explains that rulings by two different circuit judges have left a key part of the case out of the trial:
As the trial begins in a major toxic pollution lawsuit against Monsanto Co., jurors won’t be allowed to tackle a key issue: Should the company pay to clean up dioxin it allegedly spewed across the city of Nitro?
Experts won’t testify about the need for property remediation. Lawyers won’t argue about the issue. Jurors won’t be asked to force Monsanto to spend the hundreds of millions of dollars such a project could cost.
Judges O.C. Spaulding and Derek Swope issued rulings in July and November that threw out that part of the case.
As a result, Putnam County jurors will decide only if current and former Nitro residents should receive medical monitoring to detect diseases potentially caused by exposure to Monsanto’s dioxin. They won’t be able to do anything to clean up homes and businesses, ending the toxic exposure.
Lawyers for thousands of residents and property owners in the class-action suit appealed the decisions by Spaulding and Swope. They say the rulings left a huge gap in their efforts to deal with the legacy of Monsanto’s chemical-making operations.
“The current presence of dioxin contamination in the class area is a public-health hazard,” the lawyers argued in court documents. “It makes little sense to initiate a medical monitoring program for a population without first eliminating that population’s exposure to the toxin at issue.”
The West Virginia Supreme Court isn’t likely to even begin considering the appeal until April. By the time a decision is made, the trial on the medical monitoring question will probably be over.
The situation has left insiders and observers scratching their heads, as lawyers for Monsanto and Nitro residents prepare to head into one of the biggest civil trials in the Kanawha Valley in years.
“It doesn’t make any sense from the standpoint of the impact on the community,” said longtime Nitro lawyer Harvey Peyton.
Interestingly, Monsanto lawyer Charlie Love last week wrote a letter to the state Supreme Court, asking that Justice Robin Davis not participate in any consideration of the residents’ appeal:
In this class action case, we believe that Justice Davis is subject to a disqualifying interest because her husband, Scott Segal, is an active and priminent practitioner in class action and mass tort litigation in West Virginia … Mr. Segal is arguablyl the foremost class action litigator representing plaintiffs in this state, and most defense counsel familiar with this area of practice would almost certainly include him among West Virginia’s top three to five plaintiff lawyers in this specialty.
Now, Segal is not involved in the Monsanto case, but Love argues the outcome of the appeal could be so broad as to impact the cases Segal does handle. In fact, Love appears to be asking Justice Davis to recuse herself from all class-action appeals:
While we have deep respect for Justice Davis and Mr. Segal, we respectfully believe that the interests of due process and confidence in our judiciary would be best served if Justice Davis chose to disqualify herself in decisions involving contested class action issues, especially those that involve high-stakes toxic tort and/or medical monitoring claims.
Supreme Court Clerk Rory Perry responded on Friday with a letter telling Love:
… The basis for possible disqualification asserted in your letter is novel, not routine, and your detailed, three-page letter contains legal arguments that are better suited for consideration in the context of a proper motion for disqualification.
I’ve posted Love’s letter and Perry’s response here.
Meanwhile, readers who are interested in the ongoing Monsanto case might want to go back and read some of the out-of-town media coverage the issue has generated in recent years.
In one story, published in April 2010, U.S. News and World Report said:
For the better part of 30 years, Nitro has been grappling with the legacy of dioxin. The plant is long gone, leaving a vacant lot, part gravel and part pavement, with weeds—weeds, of all things—growing here and there in the cracks. In one direction, an old water tower, once white but now covered with rust, watches over the town; in the other direction, the long smokestacks of the John E. Amos Coal Plant in the neighboring town of Poca rise in the distance.
The Environmental Protection Agency has been in and out of Nitro for nearly half a century. In the mid-1980s, under EPA orders, Monsanto investigated part of the site and, after finding soil contaminated with dioxin, removed about 500 gallons of soil, the EPA says. More than a decade later, investigators turned to the water. The state and the EPA found that two rivers and one creek were contaminated. They homed in on a 14-mile stretch of the Kanawha near the old site. Starting in 2004, Monsanto began testing fish, such as bass and catfish and other bottom feeders, in the river and sampling the water and the sediment of the riverbed. Monsanto sent the results to the EPA last year. Now the agency has to decide what to do.
It is not just that site. There’s an old landfill of the type Woodall described, where Monsanto and other local businesses dumped waste, on Heizer Creek about a mile northeast of Poca, where he lives. The company stopped using that particular site in 1960, a year before Woodall started working. The EPA investigated in the 1980s and found contamination. Monsanto tried to clean it up. In 1998, the EPA came back, sampled again, and found more dioxin. According to the EPA, the cleanup is ongoing. Altogether, this town and the surrounding area have four active cleanup sites—three from Monsanto, the other from a company called Fike Chemical.
As hard as it is to clean up soil, at least there’s a chance. With people, there’s no such possibility. In 1991, Woodall retired after 30 years of service, and Monsanto gave him a plaque with a photo of the site in a wooden frame. After the herbicide job, he had worked at the site as an insulator and machinist. The workers were a family.
About a year after he retired, Woodall developed colon cancer. Maybe dioxin had something to do with it; maybe it didn’t. But thousands of Nitro residents or former residents are part of a class action lawsuit that alleges the company polluted the town with dioxin. Woodall, having worked at the plant and lived in Nitro, is a class member of the suit. Another 161 lawsuits from residents claim dioxin has caused their cancers. Monsanto says the cases lack merit. “We will defend ourselves vigorously,” says spokesman Bob Pierce.
And in a 2008 article for Vanity Fair, legendary investigator reporters Donald L. Barlett and James B. Steele wrote:
As for the Nitro plant’s waste, some was burned in incinerators, some dumped in landfills or storm drains, some allowed to run into streams. As Stuart Calwell, a lawyer who has represented both workers and residents in Nitro, put it, “Dioxin went wherever the product went, down the sewer, shipped in bags, and when the waste was burned, out in the air.”
In 1981 several former Nitro employees filed lawsuits in federal court, charging that Monsanto had knowingly exposed them to chemicals that caused long-term health problems, including cancer and heart disease. They alleged that Monsanto knew that many chemicals used at Nitro were potentially harmful, but had kept that information from them. On the eve of a trial, in 1988, Monsanto agreed to settle most of the cases by making a single lump payment of $1.5 million. Monsanto also agreed to drop its claim to collect $305,000 in court costs from six retired Monsanto workers who had unsuccessfully charged in another lawsuit that Monsanto had recklessly exposed them to dioxin. Monsanto had attached liens to the retirees’ homes to guarantee collection of the debt.
Monsanto stopped producing dioxin in Nitro in 1969, but the toxic chemical can still be found well beyond the Nitro plant site. Repeated studies have found elevated levels of dioxin in nearby rivers, streams, and fish. Residents have sued to seek damages from Monsanto and Solutia. Earlier this year, a West Virginia judge merged those lawsuits into a class-action suit. A Monsanto spokesman said, “We believe the allegations are without merit and we’ll defend ourselves vigorously.” The suit will no doubt take years to play out. Time is one thing that Monsanto always has, and that the plaintiffs usually don’t.